Méta

Ibn Kafkas widgetbox

On Friday, August 20, at 14.30, two women, Anna and Eva (not their real names) stepped into a Stockholm police station and accused Wikileaks founder Julian Assange – who’s been in Sweden since on a PR tour and possibly to establish his residence there – of rape and molestation. Rape is punishable by between 2 and 6 years’ imprisonment according to 6 kap. 1 § brottsbalken (Swedish penal code – an English translation of it is available here, but it dates from 1999) while molestation – i.e. the act of physically or otherwise molesting another person – is punishable by one year’s imprisonment according to 4 kap. 7 § of the penal code.

Here is the version of what happened, as reported by Swedish media and based on one of two women’s version – the one who was molested – as well as on police sources.

Saturday, August 14: Anna, who lives in Enköping, a small town 78 km from Stockholm, volunteered her support to Wikileaks during their very well publicised visit to Sweden. She met Julian Assange for a late lunch in Stockholm, and went to the movies with him. They agreed to keep in touch over the phone. Later that night, Julian Assange was taken to a crayfish party . Another woman, Eva has accused him of having molested her during that party. (Expressen, August 22)

Monday, August 16: Anna and Julian Assange meet for a walk in Stockholm. They then took the train to her apartment in Enköping. They had consensual sex. (Expressen, August 22)

Tuesday, August 17: Anna claims that Julian Assange went beyond the kind of sex she had agreed to: « He went too far (« Han gick för långt« ) ». Anna said she was very clear about setting the limits to the kind of sexual contact she agreed to (Julian Assange flatly denies any non-consensual sex). After that, she sent text messages to her friends telling them about the incident (the police have reportedly verified the contents of her mobile phone). (Expressen, August 22)

Friday, August 20: At around 14 hours, Anna & Eva, who came into contact with each other, decided to go to a police station in Stockholm to ask for advice on what happened to them, as they did not intend initially to press for criminal charges against Julian Assange. Eva accompanied Anna to support her rape allegations, as she alleged having been victim to similar behavior on the part of Julian Assange (no alleged rape in her case though, only molestation, a less serious crime). The police officer in charge thought however that they wanted to press charges and contacted the prosecutor on duty later in the evening. At 21.20, the prosecutor on duty, Maria Häljebo Kjellstrand, based on a phone conversation with the police officer in charge, decided to issue an arrest warrant against Julian Assange, suspected upon probable cause ot have committed the alleged rape. (Dagens Nyheter, August 22)

Maria Häljebo Kjellstrand, the prosecutor who issued the arrest warrant against Julian Assange

Julian Assange still remains under investigation for the alleged molestation.

For his part, Julian Assange has denied any rape. He has given an exclusive interview to the Swedish tabloid Aftonbladet, with which he just signed a contract to write weekly chronicles. Here are his comments on the allegations levelled against him:

Two women accuse you of having committed sex crimes on them. Any comment?
– I cannot comment this. There aren’t any detailed stories to consider.

Did you have sex with them?
– They have been anonymized in media. I have no clue of who they are.

Did you have any sex at all during your visit to Sweden?
– This is a matter which is part of my private life and that of possibly concerned women.

But isn’t it better for you to be as open as possible in this situation you’re in?
– Yes, but I don’t want to drag people’s private life into the mud without being clear about the situation. Why are they turning to the police? What’s behind this?

– All I can say is that I’ve never had sex, in Sweden or in any other country, in a way that isn’t built on total willingness from both parts.

Julian Assange further declares that he hasn’t talked either to the police or to the prosecutor service, and indicates that he plans to stay on a bit longer in Sweden than was planned earlier. Asked whether he’s walked right into a sex trap, he answers: « maybe, maybe not« , noting that he’s been warned against sex traps beforehand.

A few legal clarifications are maybe in order.

Julian Assange was subjected to an arrest warrant in his absence – anhållande i hans frånvaro. Such decisions are ruled by 24 kap. rättegångsbalken (Swedish Code of judicial procedure, of which there is a 1998 English translation here). An arrest warrant may be issued either if the suspect is suspected on probable cause to have committed a crime (24 kap. 2 § Code of judicial procedure), or if he is suspected only on reasonable cause (24 kap. 3§ Code of judicial procedure). Probable cause requires of course a higher threshold of evidentiary proof against the suspect, and makes it easier for the prosecutor to request the suspect’s pre-trial detention (24 kap. 2§ as compared with 24 kap. 3§ of the Code of judicial procedure). In her decision, the prosecutor on duty indicated that Julian Assange was suspected on probable cause to have committed a rape. This was interpreted by some commentators as to indicate that substantial evidence was at hand linking Assange to the rape.

His arrest warrant was quashed within less than 24 hours, by the prosecutor on duty’s superior, Stockholm chief prosecutor Eva Finné. This is in line with 24 kap. 10 § of the Code of judicial procedure: « Om det inte längre finns skäl för ett anhållningsbeslut, skall åklagaren omedelbart häva beslutet » – « When there are no longer reasons for an order for arrest, the prosecutor shall rescind the order immediately« . While the prosecutor on duty based her decision on oral information from the police, it must be presumed that the chief prosecutor had completing information – probably the police transcripts of the interviews with Anna and Eva. This was later confirmed on the website of the Swedish Prosecution Authority:

When Ms Finné became in charge of the matter on Saturday, she had more information than the first prosecutor had on Friday night. Decisions on coercive measures, like arrest, should constantly be re-evaluated during an investigation and must always be based on the actual information.

Legal analysts have been quick to comment. Sven-Erik Alhem, well known and outspoken former prosecutor, has been critical of the apparent u-turn in the prosecution authority’s stance:

According to the former regional prosecutor, the prosecutors have to explain many errors and omissions they’ve committed, not only to the plaintiffs and the suspect or the Swedish general public, but the whole world.
– Firstly, the arrest is based on the higher level of suspicion « probable cause ». This indicates that the level of suspicion is particularly high. Then you rescind the order a few hours later, without anything new being added to the case. This is all very confusing.
– Secondly, an arrest order in the absence of the suspect is generally not made public. It is not really productive and gives the suspect a chance to absconce. In this case they made a sound and light spectacle out of it. And then they call everything off!
– When something like this happens to a well known person you need a sensible prosecutor to step forward and sort out the questionmarks, says Sven-Erik Alhem, who is nowadays chairman of the Crime Victims Centres National Federation, BOJ. (Dagens Nyheter, August 22)

Dagens Nyheter journalist however made further inquiries on whether it is unusal for a rape suspect to be tagged with the « probable cause« -level of suspicion rather than simply with « reasonable cause« :

According to DN.se, the higher level of suspicion « probable cause » is the rule rather than the exception when it comes to rape, which could indicate a routine or automatised evaluation of the level of suspicion in connection with arrest warrants. The prosecutor on duty [who issued the arrest warrant against Julian Assange] confirmed this:
– It is usual to indicate a « probable cause »-level of suspicion in connection with arrest warrants for rape charges.

A search on Internet by DN.se, where the use of « probable cause » has been compared to the use of « reasonable cause » in connection with arrest orders on rape charges, gives the same answer. A large majority of those arrested in Sweden on charges of rape, are « arrested upon probable cause of having committed a rape« .(Dagens Nyheter, August 22)

Another contentious issue has been the swift rescision of the arrest warrant by the prosecution authority. As intimated earlier, this is perfectly in line with the letter and the spirit of the Code of judicial procedure. Sweden’s most well-known trial lawyer, Leif Silbersky, has commented on this specific issue:

The fact that a prosecutor rescinds an arrest warrant is unusual but it happens, says lawyer Leif Silbersky to DN.se.
– I have personnally experienced this a few times and it has then been the result of taking the initial decision on a sparse factual ground. Then fresh circumstances appear that call for changing the initial decision. I find changing one’s standpoint a honourable thing to do, as such an accusation is very harsh on the suspect.(Dagens Nyheter, August 21)

The prosecutor who issued the initial arrest warrant, Maria Häljebo Kjellstrand, has seven years experience as a prosecutor, specialised in sex and relationship crimes. She doesn’t have any second thoughts about her decision:

- I was provided with a report from the police which I found sufficient for him to be arrested. I do not regret my decision in any way, says Maria Häljebo Kjellstrand. (…)
– On Friday night I got a duty call from a police officer who reported on what the two women had told, says Maria Häljebo Kjellstrand.
– The information I was given was so convincing that I took my decision, says Maria Häljebo Kjellstrand. She didn’t receive any written police transcripts, nor any concrete evidence against Assange. Only a report on the police questioning of the two women.
– It’s usually sufficient in this kind of cases, says Maria Häljebo Kjellstrand. (Expressen, August 22)

Question marks have been raised on the internal communication within the prosecution authority. Prosecutor Häljebo Kjellstrand acknowledges she had spoken with chief prosecutor Finné (they spoke over the phone before Finné’s decision to rescind the arrest warrant against Assange), and Finné has asserted having more information than Häljebo Kjellstrand to rest her decision upon:

When Ms Finné became in charge of the matter on Saturday, she had more information than the first prosecutor had on Friday night. Decisions on coercive measures, like arrest, should constantly be re-evaluated during an investigation and must always be based on the actual information. (site of the Swedish Prosecution Authority)

Maria Häljebo Kjellstrand tried to put on a brave face when confronted with the rescision decision, but her disappointment could still be read between the lines:

- She probably received fresh information. She must have. You do not rescind someone else’s decision otherwise, says Maria Häljebo Kjellstrand.
« We’ve been in touch »

Kjellstrand and Finné spoke together over the phone before the new decision was taken. Kjellstrand doesn’t want to discuss the details of that conversation.
– We’ve been in contact with each other. I knew about her decision before it was made public. I’m not disappointed in any way. It happens that decisions change, says Kjellstrand. (Expressen, August 22)

However, the Swedish Prosecution Authority’s spokesperson, Karin Rosander, gave the impression that no one had any clue on what basis Häljebo Kjellstrand had taken her decision – see this interview, in English.

-The charges against Assange are of course not framed by the Pentagon or anyone else. The responsability for what happened to me and the other girl lies with a man with a slanted view of women and having problems at taking no for an answer, she told Aftonbladet. (Eva, speaking to Expressen, August 21)

While both women state they are not afraid of Assange, contrary to what has been reported in the media (Eva even states that Assange isn’t a violent person), Eva and Anna fully maintain their allegations.

And another thing: Sweden has for many years now been thrown into a fierce and politicised public debate over low conviction rates and prison terms in rape cases. Feminists have managed a change in the law ruling sexual exploitation, and media have generally been much tougher on rape suspects than was previously the case, especially when suspects have been powerful or famous men. This should not be discarded when studying the Assange case.

« Molestation » is actually a mistranslation of « ofredande », and gives the false impression that the offence is necessarily sexual in nature. As the text of the statute makes clear, it applies to a wide variety of conduct, ranging from offensive touchings and throwing of objects to making noise. The proper translation is « harassment ».

Elise: molestation might be an incorrect translation of ofredande, but it is the one retained in the official English translation of brottsbalken, i.e. the Swedish penal code. I stuck to it, although I agree it doesn’t really give the true flavor of that incrimination, which covers physical as well as non-physical harassment.

Thanks for the other suggestion though, even if påstående would seem to the Swedish equivalent to allegation, not berättelse.

Thanks for this excellent explanation of the both the sequence of events and most importantly, the Swedish legal process.

From what you say, it seems the rule is, if a women accuses someone of rape without any evidence, the Swedish public prosecutor immediately considers it of the « highest suspicion » and issues an arrest warrant for the accused.

This seems absolutely insane as anyone could go to the police, say they’ve been raped with no evidence, and the accused person is arrested with no chance to defend themselves or even be contacted by police.

As regards issuing Assange’s name, the public prosecutor usually conceals the name of people in these cases, especially well known figures. There have been hockey players and other sports stars for example in Sweden accused of rape but no name has been released until a conviction has been made or the person has gone public.

Even in the case of murder people’s names are concealed. For example, here is story of a « 41-year-old » wanted for murder! No name given:

As for the procedure when someone is accused of rape, let me remind you that according to Swedish media reports, the two women gave a detailed account of what happened, and could back up some assertions with text messages they sent shortly after the alleged assaults. I think it’s way too easy to dismiss their account just because one sympathises with Assange’s cause.

You say « no evidence », but you forget that this is a preliminary stage of the investigation – surely you do not expect the full evidence to be in the police’s hands before they arrest a suspect? If this were to be the case very few arrests indeed would be made…

As for the name publication issue: no offense to hockey players, but I cannot see any paper anywhere in the world not reporting the fact that someone of the international stature of Julian Assange is being arrested in his absence for rape. So yes, the rule in Sweden is not to publish the names of suspects, contrary to what is the case in Australia, the US or the UK for example (people forget that in any anglo-saxon country, he would have been named fairly and squarely from the first minute), but exceptions are made when the public is deemed as having the right to know the name of the suspect because of his public position. An opera singer, Tito Beltran, was thus outed when arrested for rape. There are many other examples.

That’s a fair point about the evidence question. I suppose the police have to take the women’s claims plus text messages as evidence. But both are very easy to fabricate. Surely they should have to contact the accused first without issuing an arrest warrant?

As regards the way Anglo-Saxon countries operate as regards cases like this, you’re wrong I’m afraid. Ever heard of injunctions or super injunctions?:

admin: You’re really on thin ice there. The injunction concerned private information on a player’s private life, none of which of a criminal nature, not information about him being suspected of rape. Can’t think any UK court would deliver such a gag order against any journalist wanting to publish the name of a person being arrested for rape, especially if that person is a public figure.

As for Beltran you’re again totally missing the point: Assange was outed by the media. I suppose that by the time the prosecution service got their 100th foreign journalist over the phone they decided to publish a communiqué on ther website. Doesn’t seem like a capital offense to me.

I do not know the exact details of the Beltran case, but if I was suspected of rape in any foreign coutnry I do not think the local police would send a postcard before arresting me. And they didn’t issue the name to the papers, the papers chased it just the way your commentators chased and found the name of one of the two women who accused Assange of wrongdoing.

That’s a fair point about the difference between a rapist and a footballer’s private life. I accept that.

However, I don’t agree about what you say about Beltran or Assange’s outing. Ultimately, Assange was outed by the Public Prosecutor not the media. You imply that the Public Prosecutor basically « cracked » under pressure from hundreds of media inquiries. How come that Expressen newspaper got the exclusive then? If the world’s press were already sniffing around this as you say, then I think the New York Times or another of the world’s big newspapers with the resources they have would have had it first. And even if they did « crack » from multiple inquiries, they weren’t supposed to do that and the blame lies squarely at their feet for Assange’s defamation – it was against their policy to give out Assange’s identity like that and they broke that policy.

Also, as you yourself say in your original post:

« Secondly, an arrest order in the absence of the suspect is generally not made public. It is not really productive and gives the suspect a chance to absconce. In this case they made a sound and light spectacle out of it. And then they call everything off! »

The Public Prosecutor actually jeopardized their own investigation by issuing Assange’s identity. Why would they do that!?

The truth is, they probably didn’t « crack under pressure » because there was no pressure. Expressen had a mysterious tip-off and we can only guess at who that was.

The fact is, It’s not very difficult to say « No comment ». The Public Prosecutor has no problem saying it now when the world’s media are now asking them why they didn’t contact Assange directly.

Nicholas « The fact is, It’s not very difficult to say « No comment ». »

Exactly! This reeks of character assassination.

As a matter of fact, Sweden is strange in that a consenting woman can withdraw her consent retroactively and cry rape. There is a famous case where a woman claimed alcohol interfered with her judgement and her sexual partner was convicted.

Freedom crusaders fleeing from the FBI don’t go to foreign countries and rape their women.

[…] As many know I have written several analyses in swedish regarding the Assange-case. However us people discussing this case forgot one thing. The case really is about Mr Julian Assange and the future of Wikileaks in Sweden. Most of the people involved do not understand swedish language. […]